Ohio Municipal League
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OML E- BULLETIN
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January 15, 2004

Addressed to Members of the
House Energy and Environment Committee
Ohio House of Representatives
77 South High Street
Columbus, Ohio 43215

Click here for Attorney Gotherman's Letter

Dear Representative :

In November I had asked OML’s legal counsel, John Gotherman, to review HB 278 and explain why certain of its provisions could be invalid. Not being a lawyer myself but having worked with municipal issues for a lot of years, I believe I can recognize potential problems in legislation trying to limit or eliminate a city or village’s ability to regulate locally. HB 278 is clearly such an attempt.

I heard today that with recent amendments, local government was now "OK" with the bill. Let me assure you that municipal issues are not resolved and we remain opposed to HB 278.

Mr. Gotherman points out in his opinion letter to me that the test we need to look at is one of conflict and not all out preemption. Municipalities under Article XVIII, Section 3, Ohio Constitution are granted all powers of local self government. As to police powers, (which this is) this same section of the constitution allows municipalities to exercise concurrent power with the state’s authority where such municipal power does not create a conflict. Furthermore the state statute must be a general law; in other words it must really do some substantive regulating. It can’t just say cities and villages can’t regulate. Numerous court decisions say all of this in much more learned terminology and some of them very recently.

Testimony before the Committee has missed the point. The true test in dealing with police powers, as stated above, is "conflict" not prohibition. Remember, quoting from the Ohio Supreme Court decision in the Fondessy Enterprises case, "the state and municipality have concurrent authority under their respective police powers to enforce their respective directives within the corporate limits of the city". And furthermore legislation cannot create a general law merely by stating that it is such.

This legislation will probably not appreciably increase the amount of natural gas available to Ohio citizens and there is no meaningful assurance that it will hold the line on or lower prices. What it does mean is that municipalities that wish to protect their residents will have to go to court to prove that once again they have the authority to do so.

Another issue has occurred to me. If all of these regulations are so important, why are they not done as statutes? Administrative regulation development and enactment are often less susceptible to full public scrutiny and more susceptible to influence by the regulated community

I encourage you to read John’s opinion, especially the portion where several years ago the General Assembly attempted something very similar with hazardous waste facility regulation. The Ohio Supreme Court decision clearly recognized concurrent authority.

The final nagging issue is what’s next? Which locally regulated activity will be the subject of similar state intrusions? Local officials are the first to get the call when something goes wrong. It’s a shame to try to take away their ability to solve local problems.

Please find attachment enclosed.